The rantings of a Public Defender constantly fighting against society's pervasive Police Industrial Complex. Enjoy the unique perspective of one whose life's work is to fight the system through the system.

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Wednesday, December 10, 2008

I mentioned in my last post, a month ago, that I am doing a new area of criminal defense. I'm still a PD, but I now handle those defendants who have been found Not Guilty by Reason of Inasanity (NGI), and are being held within the web of the criminal mental health system. It is a frightening system, and that is being said by an attorney.

First, juries are notoriously skeptical of NGI defenses in the first place, so I don't get many "close" cases. I have two cases, out of around 90, where the defendant was found NGI after a jury trial. The rest pled (or did a "slow plea" court trial in front of a judge) into NGI land. The vast majority of defendants who went into NGI land by plea have done far more time than they would have had they simply worked out a deal in the first place. Let me be clear: I haven't seen one case where the defendant isn't at a minimum, mentally ill. I have a tiny number of cases where the mental illness is in remission, but they were clearly mentally ill at one time, and were almost certainly mentally ill at the time of the crime. Whether they were actually NGI at the time of the crime we will likely never know, but a fair number would not have passed muster in front of a jury. The irony is that the vast majority of my clientele would have done far LESS time in prison than they end up doing in the mental institution.

But that is only where the fun begins. Under the NGI system, defendants can be extended past their maximum commitment date (based on their plea) every two years. They get a jury trial in extension cases, court trial when it is a life case. But some of these guys are so institutionalized that they don't want a trial. They hate being in a mental institution, but they have no idea where else they would go. So they end up begging to admit the extension and stay in. And the social workers and mental health workers constantly prey on their insecurities and try to get them to admit petition xtensions, "for their own good." Those with a life sentence never reach their maximum time, so the trial they would get is very weird (PC 1026.2 - Burden of proof on defendant, and trial is by court, not jury) and difficult to win. Lifers do a lot of time, but then again, lifers in prison do a lot of time as well.

The cost to house defendants at one of the mental institutions in this state is $130,000+. Many of my defendants are nowhere near violent enough to justify being in a mental institution (some are, of course), but the state hasn't made anywhere else available to put them. We have something called the Conrep program, but its capacity is staggeringly, woefully inadequate for the demand. Plus, Conrep picks and chooses who they want, such that the people they take are really not worthy of such close scrutiny, but ought to be released outright. And the mental hospitals (like Patton State Hospital or Metropolitan State Hospital) simply never want to let to let NGI defendants back into the community outright - they steer their huge patient loads toward Conrep, even when Conrep has no place to put them (and no incentive to take them).

Even though I'd rather not simply release these guys to the community without some sort of outpatient treatment, there really isn't any. The choice is keep them in an institution that costs $130,000 per year, or nothing. The LPS system isn't any better, because many of those guys are also housed at Metropolitan State Hospital, but on a different wing.

I have people that I am trying to get out (and some that I have successfully gotten out) who really only need minimal help. But the mental institutions (and the DA, who fights with me on just about everything) won't let anyone go without a fight, and when they do let someone go they boot them in the ass on the way out. And there is a viciousness in this system that is frightening. I had a guy who had been in a mental institution for 13+ years and we did his trial. He was adamantly opposed to the idea that he was mentally ill (his attorney (me) respectfully disagreed), his case was nonetheless a decent case. His actions had been relatively benign on the unit, and he pretty much refrained from fighting and the like. But when we went to trial to fight his extension, at trial the state's doctors diagnosed him with an Axis II Anti-Social Personality Disorder, an affliction I like to call the "asshole diagnosis." After treating this guy for 13+ years, no one EVER realized he had an Anti-Social Personality Disorder until he decided to go to trial for the first time. THEN they stick him with that bogus diagnosis. Mean, very mean.